* After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

November 10, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ALLEN JONES,

Plaintiff–Appellant,

v.

RICK ENGLAND, individually; DAN

MUGG, individually; C. EARNEST

WYATT, individually; GEORGE

STEVENS, individually; LEO

FUNDARO, JR., individually; LARRI

SUE JONES, individually,

Defendants–Appellees.

No. 09-6275

(D.C. No. 5:09-CV-00523-L)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, LUCERO, and MURPHY, Circuit Judges.

Plaintiff Allen Jones is the son of Larry Jones, founder of the non-profit

relief organization Feed The Children (“FTC”). In May 2009, Allen filed this

diversity action against defendants, all of whom except Larri Sue Jones are
1 For clarity’s sake, we sometimes refer to members of the Jones family by

their given names.

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former board members of FTC, alleging defamation per se based on a statement

made by Larri Sue at an FTC board meeting.1

 The alleged defamatory statement

was recorded in the meeting minutes, which were later attached to a state court

petition filed by FTC at the behest of the defendants. The district court dismissed

Jones’ defamation claim under Federal Rule of Civil Procedure 12(b)(6),

concluding that the statement was privileged under Oklahoma law. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

I

Jones’ complaint alleges that at the April 11, 2008 FTC board meeting,

Larri Sue, who serves as FTC’s general counsel, told the board that Jones had

been diagnosed as bi-polar. He claims this statement was false and malicious,

and was intended to injure his reputation and standing with the board. The

statement was recorded in the meeting minutes, which were ratified at the next

meeting of the board.

Towards the end of 2008, defendants began to argue with Larry Jones over

control of FTC’s board of directors. Defendants claim that Larry Jones, fearing

the end of his dominance over FTC, improperly and contrary to FTC’s bylaws,

appointed five of his friends to the board, and then marshalled them to oust the

defendants. In an effort to fight this “coup attempt,” in February 2009,
2 As defendants note, Allen Jones actually claims several instances of

defamation arising out of Larri Sue’s comment, including the initial verbal

utterance, the inclusion of the statement in the meeting minutes, the later

ratification of those minutes, and the attachment of the minutes to the state court

petition. The only issue before us, however, is whether the attachment of the

April 11, 2008, meeting minutes to the state court petition can support a

defamation claim notwithstanding the absolute immunity accorded by Oklahoma

law to statements made in judicial proceedings. 

-3-

defendants acting through FTC filed a petition for injunctive relief in Oklahoma

state court. That petition, which was filed under seal, “demanded a declaratory

judgment that the ‘ousted’ directors [were] in fact [the] valid Board of Directors

of [FTC], and that the ‘new directors’ improperly appointed should be found not

to be Directors.” The petition also asked the state court to invalidate all action

taken by the improperly appointed directors in the name of FTC. Defendants

attached to the petition copies of numerous board meeting minutes, including

those from April 11, 2008. On February 23, 2009, the state court sua sponte

issued an order unsealing the file, and the media quickly published the allegedly

defamatory statement. Allen Jones then filed this action, claiming that the

defendants’ attachment of the April 11, 2008, meeting minutes to the state court

petition constituted defamation per se.2

 

II

Reviewing the district court’s dismissal order de novo, Peterson v.

Grisham, 594 F.3d 723, 727 (10th Cir. 2010), we agree that the alleged

defamatory statement was privileged under Oklahoma law, and that the complaint
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therefore failed to state a claim for defamation. “Oklahoma has long recognized

that attorneys, parties and witnesses are immune from defamation and certain

other suits where those suits are based upon communications made during or

preliminary to judicial proceedings so long as the communication is in some way

relevant to the proceeding.” State ex rel. Okla. Bar Ass’n v. Dobbs, 94 P.3d 31,

45 (Okla. 2004) (emphasis omitted); see also Okla. Stat. tit. 12, § 1443.1

(codifying privilege). This privilege is absolute; it applies regardless of the

defendant’s self-interest in making the statement and regardless of malice. 

Hammett v. Hunter, 117 P.2d 511, 513 (Okla. 1941) (holding that “[n]either

malice nor design nor improper response will alter the character of an absolutely

privileged communication”). The only relevant inquiry is whether the alleged

defamatory communication is “pertinent to the issue being tried.” Id. If so, it is

immune from attack as defamation. Id.

The minutes from the April 11, 2008 meeting were undeniably pertinent to

the state court action. In the state complaint the appellees sought to enjoin Larry

Jones’ selected directors from carrying on as proper board members of FTC. The

state complaint detailed the deterioration of the appellees’ relationship with Larry

Jones, identifying as the cause their efforts to curtail his and Allen’s inappropriate

use of FTC funds. Attaching the meeting minutes to their petition served two

obvious purposes. First, the minutes served to identify the legitimately elected

board members of FTC. Second, the minutes constituted evidence of the board’s
-5-

genuine concern about suspicious expenditures by the Jones family, and even

more specifically, the board’s concern that “Allen’s behavior [had] become more

destructive toward Feed The Children and its employees.” We therefore reject

Jones’ relevance argument. 

We also decline his invitation to rewrite Oklahoma law in this area. Our

duty in a diversity case is to “apply state law in accordance with the then

controlling decision of the highest state court.” Juarez v. United Farm Tools,

Inc., 798 F.2d 1341, 1342 (10th Cir. 1986) (internal quotation marks and

alteration omitted). We are not at liberty to change applicable state law or to

ignore it and adopt a different approach. Pound v. Ins. Co. of N. Am., 439 F.2d

1059, 1063 (10th Cir. 1971). As recently as 2004, the Oklahoma Supreme Court

reaffirmed the absolute nature of the immunity doctrine at issue, noting that it

renders absolutely privileged otherwise defamatory statements “made during or

preliminary to judicial proceedings.” Dobbs, 94 P.3d at 45 (emphasis in original). 

This doctrine may prove unwieldy in the digital age, as Jones strenuously

contends. But he cites no authority for this proposition, and we are aware of no

case in which the court declined to apply the immunity doctrine simply because

the alleged defamatory statement made its way onto the internet. 

Jones also challenges the district court’s refusal to convert defendants’

Rule 12(b)(6) motions into motions for summary judgment despite its

consideration of matters beyond the pleadings, including the voluminous exhibits
-6-

attached to defendants’ state court petition. This argument lacks merit. 

Notwithstanding the general rule prohibiting the consideration of evidence beyond

the pleadings on a motion to dismiss, it is well settled that “the district court may

consider documents referred to in the complaint if the documents are central to

the plaintiff’s claim and the parties do not dispute the documents’ authenticity.”

Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (internal

quotation marks omitted). The documents considered by the district court here

fall well within these parameters. 

III

For these reasons, and because we conclude the district court acted within

its discretion in denying Allen Jones’ Motion for New Trial, the judgment of the

district court is AFFIRMED.

Entered for the Court,

Carlos F. Lucero

Circuit Judge